Crittell v Bingo et al. (11/09/2001) sp-5496

Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
EDMOND CRITTELL and ELMA )
CRITTELL, )
) Supreme Court No. S-9468
Appellants, )
) Superior Court No.
v. ) 3AN-98-59 PR
)
LAURA BINGO, THOMAS BINGO, )
ALICE MASUYAMA, COLLEEN )
NISHIYAMA, ELAINE SAKAITANI, ) O P I N I O N
and LEATRICE TAKEUCHI, )
Interested Parties, and the )
ESTATE OF VIOLET M.B. ) [No. 5496 - November 9, 2001]
HOUSSIEN, Deceased, )
)
Appellees. )
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: Sanford M. Gibbs, Brown, Waller
& Gibbs, P.C., Anchorage, for Appellants. Richard G. Haggart, Law
Offices of Richard G. Haggart, P.C., Anchorage, for Appellees.
Before: Fabe, Chief Justice, Eastaugh,
Bryner, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
BRYNER, Justice.
I. INTRODUCTION
Eighty-five-year-old Violet M. B. Houssien died alone in
December 1997. In a will executed two years previously, she left
almost all of her $1.59 million estate to an acquaintance, Elma
Crittell, and named Elma's husband, Edmond, as a contingent
beneficiary and the executor of the estate. Several interested
parties challenged the will, alleging that it was fraudulent, that
Houssien lacked testamentary capacity, and that she was unduly
influenced by the Crittells when she executed it. After a lengthy
trial, the superior court agreed with the interested parties. The
court declared the 1995 will invalid and ordered the Crittells to
pay enhanced attorney's fees. The Crittells appeal, challenging
the merits of the decision and the award of fees. We affirm on the
merits, holding that the superior court's decision correctly
applies the law and finds support in substantial evidence; but we
remand on the issue of attorney's fees, finding that the enhanced
fee award mistakenly applies Alaska's offer of judgment rule.
II. FACTS AND PROCEEDINGS
Violet M. B. Houssien died alone of natural causes in her
downtown Anchorage home on December 29, 1997. Houssien was eighty-
five years old when she died. She had lived by herself since her
husband's death in 1981. At the time of her death, her estate was
worth approximately $1.59 million.
Houssien's health deteriorated significantly over the
last ten years of her life. She experienced numerous serious
physical and mental ailments. Her mental problems included ongoing
depression, anxiety, episodes of panic disorder, and a paranoid
delusional state that began after Houssien suffered a series of
strokes beginning in 1993. Houssien's physical problems required
her to take a variety of medications that aggravated her mental
problems.
Houssien was hospitalized on several occasions in the
late 1980s and early 1990s and spent time convalescing in assisted
care facilities. Determined to live an independent existence,
however, Houssien left the Pioneer's Home in 1992 against the
advice of her physician and moved back to her residence. After
returning home, Houssien required regular home health care
services; she also relied heavily on help from friends and people
she hired to perform the various jobs and errands that were
required to meet her daily needs.
Houssien became actively involved with the Crittells in
1993. Elma Crittell's sister had been a good friend of Houssien's
before Elma's sister left Alaska in 1991. In late 1993 Houssien
began using Edmond Crittell as a handyman around the house; Elma
Crittell ran numerous errands for Houssien, helped with her
finances, and assisted with her personal needs. The Crittells
befriended Houssien and socialized with her frequently during this
period. Over the following year, the relationship intensified, and
Houssien grew increasingly dependent on the Crittells'
companionship and assistance. According to the Crittells, their
relationship with Houssien cooled significantly in late 1994, when
Houssien became upset with Edmond Crittell for taking some of her
financial and tax records. Although the Crittells claimed that
they had little further contact with Houssien after this quarrel,
the record seems to belie this assertion, documenting a series of
contacts that continued until the time of Houssien's death.
Shortly after Houssien died, Edmond Crittell petitioned
the superior court to appoint him as the personal representative of
Houssien's estate and to accept for informal probate a will that
Houssien had executed on March 22, 1995. The 1995 will left a
modest sum of cash to each of Houssien's six siblings and gave the
rest of Houssien's estate to Elma Crittell. The will named Edmond
Crittell as executor and designated him as a contingent beneficiary
in the event of a default by Elma.
Edmond Crittell's petition for informal probate was
challenged by two of Houssien's sisters. The interested parties,
Houssien's sisters, initially questioned whether the signature on
the 1995 will was actually Houssien's and, alternatively, alleged
that Houssien lacked testamentary capacity and acted under undue
influence in executing the will. In lieu of the 1995 will, the
interested parties offered for probate a prior will and codicil --
executed by Houssien in 1989 and 1990 -- that left the bulk of
Houssien's estate to her family.
The will contest came to trial before Superior Court
Judge Peter A. Michalski. In support of the 1995 will, the
Crittells testified that in early January 1998 they received a
telephone call from an unidentified person who said that they would
soon receive something important in the mail. Several days later,
on January 9, 1998, they received an anonymous mailing. [Fn. 1]
The mailing consisted of two separate envelopes. One of
the envelopes was marked to indicate that it should be opened
first; the second indicated that it should be opened in the
presence of George Goerig, an Anchorage attorney. Upon opening the
first envelope, the Crittells found that it contained an undated,
typewritten note to the Crittells from someone identified only as
"Kim,"who claimed to have typed and mailed Houssien's will and
other documents at Houssien's request as a favor for help that
Houssien had earlier rendered to Kim's sister. The first envelope
also contained other documents typed by Kim, including a letter
dated March 22, 1995, from Houssien to the Crittells, instructing
them to take the second envelope, unopened, to attorney Goerig.
[Fn. 2] Edmond Crittell took this envelope to Goerig; the envelope
contained a will purporting on its face to have been executed by
Houssien on March 22, 1995. The Crittells denied any prior
knowledge of the 1995 will's existence or the circumstances
surrounding its execution.
In opposing the 1995 will at the trial, the interested
parties did not challenge the authenticity of Houssien's signature;
rather, they sought to establish that the will was a fraud. Their
theory was that Houssien lacked testamentary capacity when she
signed the will, and that she acted out of undue influence as a
result of the Crittells' fraudulent conduct. To support this
theory, the interested parties presented evidence tending to show
that the Crittells befriended Houssien and deliberately curried her
favor at a point in her life when she was particularly isolated,
frail, and mentally vulnerable; that they reduced her to a state of
dependency and tricked her into signing papers in blank; that on
March 22, 1995, they appeared with Houssien at an Anchorage
business known as Mail Boxes, Etc., with two witnesses -- one Elma
Crittell, the other unknown -- who signed the will in front of a
notary but fraudulently misrepresented their true identities; that
the Crittells thereafter arranged to have the Mail Boxes, Etc.,
store burglarized in order to remove the records of notarization,
which might have allowed the fraudulent witnesses to be identified;
and that they subsequently kept Houssien from contacting an
attorney to change the 1995 will.
After hearing a trial lasting more than nine full days
and including testimony from thirty-seven witnesses, Judge
Michalski issued a written decision that accepted the interested
parties' theory of fraud, lack of testamentary capacity, and undue
influence. Judge Michalski stated his conclusions as follows:
The court finds in favor of the
interested parties and decides that the Will of March 22, 1995
submitted to the court and supporting documents were not prepared
at Ms. Houssien's request and did not convey her last will. The
court also finds that, at the time of the Will signing, Ms.
Houssien was not capable of making a will and that undue influence
was imposed on this deteriorating, vulnerable and dependent woman
at the time the Will was signed.
Though denied by the Crittells, the
evidence proves that the Will and "Kim"papers were prepared by the
Crittells or at their direction and signed at Mail Boxes Etc. while
they were present. Further, no witness was presented at trial who
established Ms. Houssien's competence at the time of signing and,
in fact, all the evidence suggests she was frail, vulnerable,
teary-eyed (though a chronic sufferer of a lack of tears syndrome)
and so weak as to cause the notaries to inquire if she was all
right. The court finds she signed the supporting papers under a
false pretext and before the content was placed on them and that
the content placed there was not at her direction. The court
further finds that the burglary of the notary logbook was related
to the Will and was performed to remove evidence of the witnesses
in this case. The court finds the language usage, as well as
content of the supporting documents, is concocted and a fraud.
The court further finds that Ms. Houssien
progressively deteriorated during her last decade and, though there
were many times during her last years in which she was competent,
the record before the court reflects that, at the time of the Will
signing, she was not competent due to aging and medicines, and was
at the mercy of the Crittells' effort to influence her Will.
The judge supported these conclusions with nearly thirty
pages of detailed factual findings that he drew from the
conflicting evidence presented at trial.
The Crittells appeal, challenging the superior court's
findings and contending that the court misapplied applicable law.
Because these findings are central to the issues at hand and set
out a description of the evidence that eludes accurate
summarization, we attach them as an appendix to our opinion.
III. DISCUSSION
A. Standard of Review and Standards Governing Testamentary
Capacity and Undue Influence
Issues of testamentary capacity and undue influence
involve questions of fact that we review under the clearly
erroneous standard. [Fn. 3] Factual findings are clearly erroneous
only if we are left with "a definite and firm conviction on the
entire record that a mistake has been made, although there may be
evidence to support the finding."[Fn. 4] In reviewing a trial
court's findings for clear error, we consider the evidence in the
light most favorable to the party prevailing below. [Fn. 5]
The standard for finding testamentary capacity is well
established in Alaska. We first described the three elements of
testamentary capacity in In re Estate of Kraft:
The question is always whether . . . [the
testator] had sufficient mental capacity to understand the nature
and extent of [her] property, the natural or proper objects of
[her] bounty, and the nature of [her] testamentary act.[ [Fn. 6]]
More recently, in In re Kottke, we emphasized that a finding of
incapacity may be based on the absence of a single element: if the
court finds a deficiency on any one of the three elements of
testamentary capacity, the court must invalidate the will. [Fn. 7]
But the deficiency must be shown to have existed when the will was
executed. [Fn. 8]
The test of undue influence is also well established.
The party challenging a will must prove that "the testator was
virtually compelled to make a will [that the testator] would not
have made [if] left to the free exercise of [the testator's] own
judgment and wishes."[Fn. 9] We approach this issue by asking
whether a person used "coercion and duress which would act as a
dominating power over the mind and act of a testator."[Fn. 10] In
other words, was the willpower of the testator "so destroyed as to
substitute the will of another?"[Fn. 11] The test for undue
influence does not presume the existence of an objectively
determined "reasonable testator"but instead considers the personal
strengths and weaknesses of the testator in the particular case at
issue:
[T]he presence of undue influence is measured
by a subjective standard. The existence of undue influence in a
particular case is to be determined by ascertaining the effect of
the influence which was, in fact, exerted upon the mind of the
testator, considering his physical and mental condition, the person
by whom it was exerted, the time and place and all the surrounding
circumstances; and not by determining the effect which such
influence would have had upon the mind of the ordinarily strong and
intelligent person.[ [Fn. 12]]
B. Sufficiency of the Trial Court's Decision
As a threshold matter, the Crittells complain that the
trial court's findings are deficient. Because the superior court
did not expressly allocate the burden of proof, recite the legal
standards governing testamentary capacity and undue influence,
label any portion of its decision as a statement of its legal
conclusions, or bolster the decision with citations to any case
law, the Crittells assert that the court left no "clue as to what
conclusions of law it reached,"thereby violating Alaska Civil Rule
52(a).
These contentions are meritless. Rule 52(a) provides
that a court conducting a nonjury trial must "find the facts
specially and state separately its conclusions of law thereon."
[Fn. 13] We have long read this language to require that a trial
court "give the Supreme Court a clear understanding of the basis
for the decision made."[Fn. 14] But by the same token we have
recognized that it does not "invariably require that the findings
and conclusions be properly labeled, or even that express findings
be made on all questions, so long as the record clearly indicates
that the court considered the matter and resolved each critical
factual dispute."[Fn. 15] The core purpose of the rule, then, is
to enable the appellate court to conduct a meaningful review of the
trial court's decision-making process. [Fn. 16]
Here, the superior court's opinion readily meets this
purpose. Although the court did not explicitly designate any part
of its opinion as a statement of its legal conclusions, the section
of the opinion labeled "THE DECISION"(most of which we have quoted
above) plainly embodied the court's legal conclusions and was
intended as such; it is followed by a separate section stating at
length the court's supporting "FINDINGS OF FACT." While it is true
that the superior court's opinion cites no supporting legal
precedent, the Crittells fail to identify any notable departure
from established legal standards; and they offer no legal authority
suggesting that Rule 52(a) should be read to require a trial court
to pad a substantively correct statement of legal conclusions with
supporting citations.
Moreover, the legal standards governing the parties'
dispute were essentially uncontroverted below. In a pretrial
motion to establish the law that would govern the case, the
Crittells set out relevant case law from Alaska and other
jurisdictions concerning tests, standards, and burdens of proof in
testamentary capacity and undue influence cases. In response,
although the interested parties took issue with various factual
assertions set out by the Crittells, they conceded that "[t]he
parties do not dispute the basic law, and the respective burdens of
proof, that each side [will] bear at trial." The Crittells agreed
with this assertion: their reply expressly acknowledged that "[t]he
parties agree on the fundamental legal tests and on the burdens of
proof in AS 13.16.170 to be applied in this case." In context,
then, it hardly seems surprising that Judge Michalski found little
need to articulate and cite precedent for the legal principles
underlying his conclusions.
The Crittells nevertheless note two comments in the
superior court's opinion that, in their view, suggest a
misapplication of the correct burdens of proof. Pointing first to
language in the findings of fact that describes them as "defending"
the 1995 will, the Crittells assert that the superior court might
have mistakenly believed that the Crittells bore the burden of
proving the will's validity -- a belief that would be contrary to
settled law. [Fn. 17]
But the court's statement suggests just the opposite: it
indicates that the superior court allocated the burden correctly.
Because plaintiffs, not defendants, ordinarily bear the burden of
persuasion, the court's description of the Crittells as "defending"
the 1995 will implicitly recognized that -- as is commonly the case
with defendants -- they did not bear the burden of persuasion on
the point. In referring to their defense of the will, the court
simply recognizes the reality that, even though they had no burden,
the Crittells did choose to present evidence defending the will;
and the court accurately describes their evidence.
The Crittells raise a similar issue by pointing to a
comment in the superior court's opinion stating that "no witness
was presented at trial who established Ms. Houssien's competence at
the time of signing." Correctly observing that a party asserting
testimonial incapacity must show incompetency at the time of
signing, [Fn. 18] the Crittells insist that the court's comment
betrays its failure to recognize that the interested parties -- not
the Crittells -- bore the "burden of proof that at the time Violet
Houssien signed the March 22, 1995 will, she did not have the
requisite capacity to execute the will."
But when the disputed comment is read in context, it
evinces no confusion on this point. Immediately after noting the
absence of any evidence suggesting Houssien's competency at the
time of signing, the superior court emphasized that "in fact, all
the evidence suggests she was frail, vulnerable, teary-eyed (though
a chronic sufferer of a lack of tears syndrome) and so weak as to
cause the notaries to inquire if she was all right." These
observations, briefly stated in "THE DECISION"section of the
court's written opinion, were followed by an extensive discussion
in the "FINDINGS OF FACT"section that summarized the interested
persons' affirmative evidence of incapacity -- evidence that the
court recognized as focusing on the moment of signing instead of on
Houssien's general condition.
Viewed in its entirety and against the backdrop of these
factual findings, the opinion's disputed comment concerning the
lack of any evidence tending to show competency seems
uncontroversial: it simply notes, as a practical matter, that the
Crittells failed to refute any of the evidence of incapacity that
the interested parties presented in support of their burden on the
issue. [Fn. 19]
To summarize, then, the superior court's opinion
adequately explains the factual and legal grounds for its ruling,
provides an ample basis for meaningful appellate review, evinces no
misunderstanding of applicable law, and therefore fully satisfies
the requirements of Civil Rule 52(a).
C. Factual Findings and Sufficiency of Evidence
The Crittells scatter most of the rest of their briefing
on evidentiary details. They assert that the trial court's factual
findings conflict with or fail to explain various items of evidence
favoring their view of the case and that the court drew
unreasonable inferences from testimony in some instances, while
overlooking reasonable inferences in others. The Crittells
maintain that the factual findings are clearly erroneous in many
particulars and that the evidence as a whole fails to sustain the
conclusion that Houssien lacked testamentary capacity or was a
victim of undue influence.
But while these arguments fell an occasional tree, they
leave a forest of evidence standing. The Crittells' strongest
factual point is their challenge to the trial court's findings on
testamentary capacity. The trial testimony concerning Houssien's
intellectual acuity left considerable room for ambiguity: while
some witnesses painted a picture of Houssien as progressively
declining in physical strength and mental awareness, others
depicted her as capable of understanding and controlling her
financial situation in most circumstances.
But the trial court expressly recognized these
testimonial conflicts and carefully considered them in its
decision. The court's findings, set out in the attached appendix,
largely speak for themselves. In reviewing these findings for
clear error, we do not reweigh the evidence or redetermine issues
of testimonial credibility. Instead, our task is limited to
deciding whether the trial court articulated a reasonable basis for
its decision that is supported by substantial evidence and does not
leave us firmly convinced of clear error.
Here, the superior court's finding of testamentary
incapacity correctly focused on the day of the contested will's
signing; the court expressly found that, "though there were many
times during her last years in which [Houssien] was competent, the
record before the court reflects that, at the time of the Will
signing, she was not competent due to aging and medicines, and was
at the mercy of the Crittells' effort to influence her Will." This
finding unequivocally expresses the court's conclusion that
Houssien lacked sufficient mental capacity to understand the nature
of her testamentary act. Our examination of the record reveals
ample evidence to support this conclusion and fails to convince us
that the court's findings are clearly erroneous in any significant
respect.
Moreover, even if we were persuaded that the interested
parties failed to meet their burden of proving testimonial
incapacity, the evidence concerning Houssien's declining health and
diminishing mental fitness would nonetheless weigh strongly in
favor of the court's alternative conclusion that Houssien was a
victim of the Crittells' fraud and undue influence. Because we
measure undue influence by a subjective standard, the extensive
evidence of Houssien's physical and mental impairments bears
directly on the issue of undue influence by indicating that she was
particularly vulnerable to the kind of fraudulent scheme allegedly
perpetrated by the Crittells. And the record contains compelling
evidence of undue influence in other respects, as well.
As mentioned above, the interested parties asserted at
trial that the 1995 will was an elaborate fraud concocted by the
Crittells. The trial court accepted this theory and detailed the
supporting evidence in its decision; [Fn. 20] these details need
not be repeated here. Our review of the record convinces us that
the trial court's findings are supported by overwhelming
circumstantial evidence that the Crittells overbore Houssien's free
will by their fraudulent conduct. [Fn. 21]
Although we have never had occasion to review a will
contest involving undue influence allegedly perpetrated by fraud,
in Paskvan v. Mesich we favorably cited an Oregon Supreme Court
decision that addressed the situation. [Fn. 22] In In re
Reddaway's Estate, the Oregon court set out a helpful list of
factors to consider in determining the presence of undue influence
arising from a fraud: whether the testator (1) received independent
advice in the will-making process, (2) shrouded the will in
secrecy and haste (suspicious circumstances), (3) exhibited an
unexplained change in attitude toward others, (4) suddenly changed
a prior plan of disposition, (5) made unnatural or unjust gifts, or
(6) demonstrated a susceptibility to influence based on a weak
physical or mental condition. [Fn. 23]
Judged by these common earmarks of fraudulent influence,
the record easily supports the superior court's finding of undue
influence. First, although Houssien had employed attorneys to
draft her prior wills, the 1995 will was produced without the aid
of counsel; further, the record contains substantial evidence
suggesting that the Crittells impeded Houssien's access to counsel
after the will was signed. Second, the drafting, execution, and
publication of the 1995 will were shrouded in secrecy, haste, and
suspicious circumstances. Third, the will exhibited an unexplained
-- or at least irrationally explained -- change in Houssien's
attitude toward others. Fourth, the 1995 will reflects a sudden
change in Houssien's prior plan of disposition. Fifth, the will's
gift to Elma Crittell -- almost completely excluding all other
beneficiaries -- certainly seems unnatural and unjust. And sixth,
as we have previously discussed, Houssien's physical and mental
impairments made her particularly susceptible to -- and a natural
target of -- undue influence.
In summary, then, the findings on undue influence are not
clearly erroneous, and we find no factual or legal reason to
disturb the superior court's judgment declaring the 1995 will
invalid. [Fn. 24]
D. Attorney's Fees
The only remaining issue is the superior court's award of
attorney's fees. Prior to trial, the interested parties made a
$100,000 offer of judgment to the Crittells. The Crittells
declined the offer and proceeded to trial. After Judge Michalski
decided the case in their favor, the interested parties applied for
costs and attorney's fees, requesting enhanced fees under Civil
Rule 68's offer of judgment provision or, alternatively, under
Civil Rule 82(b)(3)'s enhancement provisions. In support of their
application, the interested parties submitted a statement splitting
their attorney's fees into two categories: (1) $136,409.85 for fees
incurred from inception of the case to the expiration of their
offer of judgment; and (2) $196,258.50 for fees incurred after the
offer expired.
The superior court ultimately awarded the interested
parties $166,134.18 in attorney's fees, indicating that this award
was based on Rule 68(b)(2). [Fn. 25] This sum reflects fifty
percent of the interested parties' total fees -- fees earned both
before and after their offer of judgment.
On appeal, the Crittells cursorily argue that the
superior court abused its discretion in awarding enhanced
attorney's fees under Civil Rule 82(b). The interested parties
respond by correctly noting that the court actually awarded
attorney's fees under Civil Rule 68(b)(2). But while this response
disposes of the Crittells' argument under Rule 82(b), it raises a
troublesome new issue.
The express terms of Rule 68(b)(2) entitled the
interested parties to recover only fifty percent of their
reasonable and actual attorney's fees "from the date the offer was
made."[Fn. 26] Because the court's order awarding the interested
parties fifty percent of their total fees conflicts with the plain
language of Rule 68(b)(2), we hold that the order amounts to plain
error. The error requires us to vacate the order awarding
attorney's fees and to remand the issue of fees for reconsideration
in light of Rule 68(b)(2)'s express limitation.
The trial court's award of enhanced fees under Rule
68(b)(2) raises other potential issues. For instance, it is
unclear whether the interested parties' offer of judgment was made
more than sixty days after the deadline for filing "disclosures
required by Civil Rule 26."[Fn. 27] It is likewise unclear
whether the offer of judgment amounted to an impermissible joint
offer. [Fn. 28] Moreover, we note that Rule 68(c) appears to
require attorney's fees to be awarded under Rule 82(b) in certain
offer of judgments situations. Rule 68(c) provides that
if the amount awarded an offeror for attorney
fees under Civil Rule 82 is greater than a party would receive
under paragraph (b), the offeree shall pay to the offeror attorney
fees specified under Civil Rule 82 and is not required to pay
reasonable actual attorney fees under paragraph (b). A party who
receives attorney fees under this rule may not also receive
attorney fees under Civil Rule 82.
Because neither party has adequately briefed any of these issues,
we decline to consider them, leaving them for the superior court to
address upon remand. In remanding this case, we do not preclude
the superior court, in the exercise of its discretion on remand,
from reconsidering its initial decision denying the interested
parties' motion to award enhanced fees under Rule 82(b)(3).
IV. CONCLUSION
We AFFIRM the superior court's judgment invalidating
Violet M. B. Houssien's 1995 will. We VACATE the court's order
awarding attorney's fees and REMAND for reconsideration in
accordance with this opinion.
FOOTNOTES
Footnote 1:
The Crittells asserted that they did not even know that
Houssien had died at this time and that the anonymous mailing was
their first indication of Houssien's death.
Footnote 2:
Other documents in the first envelope included a letter to
Goerig dated March 22, 1995, indicating that the second envelope
contained a will and asking Goerig for help in ensuring that
Houssien's prior will was revoked; a letter of instruction by
Houssien, also dated March 22, 1995, purporting to revoke all of
Houssien's prior wills, codicils, and the Houssien Revocable Trust;
an undated letter to Houssien's surviving siblings, urging them not
to challenge Houssien's most recent will; and a paper dated
January 8, 1997, titled "Addition to Will,"reaffirming Houssien's
desire to give her estate to the Crittells and urging them to
accept the gift.
Footnote 3:
See In re Estate of Kottke, 6 P.3d 243, 245 (Alaska 2000); In
re Estate of Kraft, 374 P.2d 413, 416 (Alaska 1962); see also
Alaska R. Civ. P. 52(a).
Footnote 4:
Kottke, 6 P.3d at 245 (quoting Mathis v. Meyeres, 574 P.2d
447, 449 (Alaska 1978)).
Footnote 5:
See id.
Footnote 6:
374 P.2d at 416.
Footnote 7:
See Kottke, 6 P.3d at 246.
Footnote 8:
See In re Estate of Kraft, 374 P.2d 413 (Alaska 1962); 1
William J. Bowe & Douglas H. Parker, Page on the Law of Wills
sec. 12.2, at 571-74 (rev. ed. 1960).
Footnote 9:
Kraft, 374 P.2d at 417.
Footnote 10:
Paskvan v. Mesich, 455 P.2d 229, 234 (Alaska 1969) (citing
Kraft, 374 P.2d at 417).
Footnote 11:
See 1 Bowe & Parker, supra note 8, sec. 15.2, at 715 ("Undue
influence exists only when the will power of the testator is
destroyed, and his own will is borne down. His freedom of will
must be so destroyed as to substitute the will of another for his
own."(footnotes omitted)).
Footnote 12:
Id.
Footnote 13:
Specifically, Alaska Rule of Civil Procedure 52(a) states:
In all actions tried upon the facts
without a jury or with an advisory jury, the court shall find the
facts specially and state separately its conclusions of law thereon
. . . . Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of the
trial court to judge the credibility of the witnesses.
Footnote 14:
Sullivan v. Subramanian, 2 P.3d 66, 69 (Alaska 2000) (quoting
Dickerson v. Geiermann, 368 P.2d 217, 219 (Alaska 1962)).
Footnote 15:
Urban Dev. Co. v. Dekreon, 526 P.2d 325, 328 (Alaska 1974).
Footnote 16:
See id.
Footnote 17:
See Paskvan v. Mesich, 455 P.2d 229, 233, 239 (Alaska 1969)
(recognizing that contestants in a will contest bear the burden of
establishing undue influence and lack of testamentary capacity); AS
13.16.170 (same).
Footnote 18:
See In re Estate of Kraft, 374 P.2d 413, 416 (Alaska 1962).
Footnote 19:
It is worth reemphasizing in this connection the absence of
any controversy below over the proper allocation of burdens of
proof. Indeed, at the pre-trial status conference, counsel for the
Crittells took pains to explain his reliance on the understanding
that the Crittells would bear the initial burden of producing a
facially valid will and that, once they met this minimal burden,
the interested parties would assume the burden of proof in
contesting the will. Judge Michalski echoed this understanding,
stating that he believed it appropriate for the interested persons
to "act as plaintiff . . . to use the regular civil idea, that you
attack this thing that, on its face, appears to be valid."
Footnote 20:
See Appendix at 2-59.
Footnote 21:
As we noted in Gabaig v. Gabaig, 717 P.2d 835, 838 (Alaska
1986), "Existence of a fraudulent intent is a question of fact,
often proven by circumstantial evidence." The Crittells insist
that the absence of any substantial evidence establishing a
confidential relationship between them and Houssien essentially
defeats the claim of undue influence. But this argument is a red
herring, since the only effect of showing that the Crittells were
involved in a confidential relationship with Houssien would be to
shift the initial burden of producing evidence establishing valid
execution; the showing would not have altered the ultimate burden
of persuasion. See Paskvan, 455 P.2d at 233-34. Because the
Crittells presented substantial evidence of proper execution --
which ultimately proved unpersuasive -- the superior court's
failure to consider the existence of a confidential relationship
has no conceivable bearing on the outcome of its decision.
Footnote 22:
See Paskvan, 455 P.2d at 234 n.10 (citing In re Estate of
Reddaway, 329 P.2d 886, 890 (Or. 1958)).
Footnote 23:
Reddaway, 329 P.2d at 891-93.
Footnote 24:
Upon declaring the 1995 will invalid, Judge Michalski admitted
to probate Houssien's prior will of October 9, 1989, as amended by
the first codicil of October 5, 1990. Because no party challenges
this determination, we need not address it.
Footnote 25:
In a prior order, the court had expressly declined to consider
enhancing fees under Rule 82(b)(3).
Footnote 26:
Alaska Rule of Civil Procedure 68(b)(2) provides:
If the judgment finally rendered by the court
is at least 5 percent less favorable to the offeree than the offer,
or, if there are multiple defendants, at least 10 percent less
favorable to the offeree than the offer, the offeree, whether the
party making the claim or defending against the claim, shall pay
all costs as allowed under the Civil Rules and shall pay reasonable
actual attorney fees incurred by the offeror from the date the
offer was made as follows:
. . . .
(2) if the offer was served more than 60
days after both parties made the disclosures required by Civil Rule
26 but more than 90 days before the trial began, the offeree shall
pay 50 percent of the offeror's reasonable actual attorney fees[.]
(Emphasis added.) See also AS 09.30.065.
Footnote 27:
See Alaska R. Civ. P. 68(b)(2).
Footnote 28:
See Brinkerhoff v. Swearingen Aviation Corp., 663 P.2d 937,
943 (Alaska 1983).
APPENDIX A *
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT AT ANCHORAGE
In the Matter of the )
Estate of )
)
VIOLET M.B. HOUSSIEN, )
)
Deceased. )
______________________________)
Case No. 3AN-98-59 PR
FINDINGS OF FACT AND DECISION FROM TRIAL
. . . .
FINDINGS OF FACT
1. Violet M.B. Houssien was born September 8, 1912, in Hawaii
and was discovered dead at her home in Anchorage, Alaska on
December 29, 1997.
The Declining Years
2. Ms. Houssien outlived her husband Abraham Houssien, who
died in 1981. She lived in the Pagoda Restaurant building located
at 5th and A Street until she died. It was important to her to
remain in her own home -- a recognized preference of almost all.
But, because of the ravages of old age, which began taking their
toll during the last ten years or so of her life, her accomplishing
this degree of independence was quite a feat and required a lot of
help.
3. During her decade of decline, the deceased was in and out
of the hospital for a number of serious problems which brought her
to the brink of death and which caused her doctor, Michael
Armstrong, to consider her return to her home from the sequence of
hospital care, and then further convalescence and assisted living
at Our Lady of Compassion, the Mary Conrad Center, and the
Anchorage Pioneers' Home very unusual. In late 1989 she suffered
iliopsoas abscess, in 1990 life threatening gastrointestinal tract
bleeding, and later, flesh eating bacteria. Other medical problems
that she dealt with while under Dr. Armstrong's care included
chronic gastrointestinal reflux problems, asthma, an underactive
thyroid, prolonged grief reaction to the death of her husband in
1981, Sjogren's Syndrome, mental problems of anxiety, panic
disorder, and depression. Since 1988 she had suffered significant
heart disease caused by hardening of the arteries resulting in
chest pain, but, of course, the hardening of the arteries also
affected other parts of the body including her brain. This
resulted, at least once, in a transient ischemic attack which
lasted for several hours. This stroke was manifested by prolonged
inattention and was probably one of the sources of the identifiable
stroke areas which were observed in a brain image taken only
shortly before her death in 1997.
Ms. Davis, of Home Health Care, further described the
Sjogren's Syndrome which Ms. Houssien suffered as a lack of tears
and saliva.
Reliance on others
4. Ms. Houssien left the Pioneers' Home in 1992 against the
advice of her doctor, Dr. Armstrong, who was concerned for her and
considered her extremely frail and unable to live unassisted in her
home in downtown Anchorage. For that reason, he made medical
orders which would make it likely that Home Health Care services
would be made available to her. This allowed her to be at home and
"independent."
5. In 1993, Ms. Houssien fired the Home Health nurse that was
assisting her and, from that point on, in addition to subsequent
periodic Home Health Care nursing, relied a great deal on a number
of people either hired by her or who befriended her and acted in
much the same capacity as Home Health nurses. She paid these
people for their service, but none of them lasted very long. Dr.
Armstrong was unsure why there was such turnover, but suggested one
of the causes was Ms. Houssien's distrustful nature of those who
came into her home. He testified to the obvious: she wanted to be
independent, but due to her medical condition she had to rely on
others to do the things that needed to be done to live in her house
by herself rather than in the Pioneers' Home or other assisted
living arrangement.
6. Ms. Houssien talked with the doctor about her Will, and he
recalled that in the fall of 1997 she wanted the name of the
attorney that Dr. Armstrong had earlier referred her to in 1990
when the subject of her Will had come up. She told the doctor,
sometime in 1997, that her Will was missing. He does not recall
her telling him who she thought had taken it but he did remind her
that the attorney was Trigg Davis.
Interference with care
7. Dr. Armstrong reported an incident where a man -- who
turned out to be Edmond Crittell, of whom we learn more later --
accompanied Ms. Houssien to see him and that the man was verbally
belligerent about the antacid that Dr. Armstrong was prescribing
for Ms. Houssien and told the doctor "don't you know ulcers are
caused by bacteria . . . ." Understandably, this conduct resulted
in the doctor shooing him out to the waiting room. Viewed from a
friend's perspective, this "interference"may seem like advocacy.
From the doctor's perspective, it amounted to ignorant meddling.
Ms. Houssien's problem was not bacterial ulcers.
8. Dr. Armstrong did not recall that either of the Crittells
promoted the stopping of necessary medicine, Keflex, prescribed to
deal with Ms. Houssien's leg wound in 1994, but identified a
nurse's note (ex. 8, p. HHC515) which stated "Clt distress about Ed
& Alma criticising [sic] her medical management: Alma [Elma]
visited, she call MD today to ask why Keflex is being continued
although wound is not infected."
9. Ms. Davis, of Home Health Care, reported Ms. Houssien was
very upset with Mr. Crittell's interference with her medicine
management and the incident in Dr. Armstrong's examining room. It
was Ms. Davis's view that Ms. Houssien had a lot of confidence in
her doctor and that Ms. Houssien believed that her treatment was
none of Mr. Crittell's business.
Report of Robbery
10. Carol Moore, Dr. Armstrong's nurse, testified that she
worked with Dr. Armstrong from 1993 to 1995 and that she was aware
of Ms. Houssien as a patient of the doctor. She met Ms. Houssien
many times and spoke with her on the phone many times. She
considered Ms. Houssien to be a very intelligent person. On
March 20, 1995, Ms. Houssien called the office and was "very, very
upset and kind of crying." She reported that she had just been
"robbed"and that a lot of money was taken: $135,000. The stated
reason that she called was that she wasn't going to be able to make
an appointment that day due to the "robbery"and being too upset by
it. The particular nurse's note of the incident (which incident
Ms. Moore remembered independently due to the unusual nature of it)
was as follows:
3-20-95 pc from pt- rambling for 70 mins
re: Robbery ($135,000) & just about everything else - I really
don't know why she called except for someone to talk to: due to
above she didn't make her appt - will reschedule - CMoore.
Ms. Moore testified that the "robbery"report was a very
unusual event, though it was not necessarily unusual for Ms.
Houssien to call and talk at length to Ms. Moore. Ms. Moore
recalled that Ms. Houssien was suspicious of the handy man in
relation to the so-called "robbery." (Later findings clarify this
to be an alleged burglary.)
The Will signing
11. The Will being tested in this action is one that is dated
March 22, 1995.
12. On that date, two days after the report of an alleged
"robbery,"Violet M.B. Houssien signed a Last Will and Testament at
the Mail Boxes Etc. store on Fourth Avenue in Anchorage, Alaska.
13. Tanya Nelson, then 30, was a managing clerk at the store
and began helping Ms. Houssien and those who were with her. Ms.
Nelson remembers four of the people there: Ms. Houssien, who was
at that point a frail elderly Japanese American, a taller Asian
woman, a Caucasian man, and an "older"Caucasian woman.
14. Ms. Nelson's memory of Ms. Houssien and her condition is
that she had watery eyes -- so much so that Ms. Nelson put out
tissues for her; that Ms. Houssien looked frail and winded and
appeared to need to sit down. Ms. Nelson remembers providing a
seat for her.
15. Because Ms. Nelson was involved with a rush copying job
for a customer's legal deadline, she eventually turned the notary
process over to a co-worker, Junalee Fernandez. Before that
happened, however, Ms. Nelson got a look at the people there for
the signing. She initially thought the man with Ms. Houssien was
a friend of her father's named Dan Heiner. But, upon closer
inspection, she realized that it was not him. Ms. Nelson thought
that the Caucasian woman resembled her stepmother.
16. Ms. Nelson made in court identification of Edmond and Elma
Crittell as the two Caucasian people she remembers being members of
the party at the signing of the Will that day. But Ms. Nelson's
identification is suspect because of the suggestive procedure used
by Leonard Hackett in investigating the case. Hackett presented a
photographic lineup to Ms. Nelson more than three years after the
signing and, according to her testimony, he included multiple
photographs of the Crittells in their respective lineups.
17. The photo lineups themselves were not submitted to the
court for viewing or determination whether they were actually so
suggestive or unfair as to require the absolute exclusion of any
identification by Ms. Nelson. But, absent other indicia of
reliability of the identification, the court would give little
weight to or reject outright the identifications made subsequent to
the photo lineups due to the procedure used.
18. In fact, Ms. Nelson appears to have independently
remembered the Will signing and the related people because of an
extraordinary incident near in time: a burglary of the Mail Boxes
Etc. store in which the only thing stolen was the notary log book
kept by the store. According to Ms. Nelson, the burglary, which
occurred the weekend after the Will signing, was the non-stop topic
of discussion around the store for the next ten days as the staff
there, primarily Ms. Nelson and Ms. Junalee Fernandez, tried to
remember each transaction and the people that had anything to do
with the log book. This effort to figure out which transaction
might motivate the theft of the log book contributed to the quality
of their memory of the Will signing. Additionally, the associative
form of memory that Ms. Nelson applies suggests that she
independently recollected the Crittells being present in spite of
the suggestiveness of Leonard Hackett's lineups: she remembered
first thinking on seeing the Caucasian man that he was a friend of
her father and, on seeing the Caucasian woman that she looked like
her stepmother. The court finds that the photograph provided of
her father's friend does resemble Mr. Edmond Crittell. The court
is unaware of what Ms. Nelson's stepmother looks like. It is
clear, however, that Ms. Nelson generally described the older
Caucasian woman as having a significant overbite. The photographs
of Ms. Crittell, as well as her appearance in court, do demonstrate
that she is middle-aged as described (an "older"Caucasian woman to
a woman then thirty), and she has a substantial overbite.
19. Evidence related to the transactions which took place at
Ms. Crittell's store where she says she was working alone the day
of the Will signing demonstrate that there was an hour and a half
gap between transactions, which -- though possibly not unusual --
would have allowed Ms. Crittell to go downtown and be present at
the signing. Ms. Crittell notes in her testimony that her lease
requires her store to be open for mall hours and she says that
during mall hours she only leaves and closes the store for five
minutes or so to use the toilet.
20. Another reason why Tanya Nelson would have a reliable
independent basis for her recollection of the event and the
participants in the signing is that, as manager, she not only
started the transaction and transferred it to her co-worker, but
continued to supervise it throughout its completion.
21. Ms. Nelson's co-worker, Junalee Fernandez, testified that
she followed all normal procedures for notarizing. The log book --
stolen in the subsequent burglary -- was kept under the counter
where it was easily available to the staff and obvious to
customers, who were observant, as to where it was kept. Ms.
Fernandez used the log book to record the names of the persons
signing, the identification used, and the addresses of the persons
being identified. Ms. Fernandez only recalls the woman whose will
it was (an older lady with a cane), a man (kind of bald), and a
taller Asian woman. One of the witnesses had a California license
for identification, but gave her address as Tokyo. So Ms.
Fernandez checked with Ms. Nelson to see if it was alright to
continue the notary process. They both recall the complication
that arose and the need for attention to this detail.
22. Former Anchorage Police Department Investigator Joseph
Austin's testimony about suggestive photographic lineups is well
taken but, under the facts of this identification and the basis for
Ms. Nelson's identification, the court finds that Edward and Elma
Crittell were present at the signing of the Will, in spite of their
testimony to the contrary.
23. The presence of the Crittells at the signing of the Will
which makes Ms. Crittell the primary beneficiary (residually) and
Mr. Crittell the personal representative is interesting in itself,
but it is significant primarily because of their denial of that
fact, the alleged manner in which the Will was produced to the
court, and the court's finding that the Will and the papers
accompanying it are fraudulent documents, about which more will be
said later.
24. It turns out that no one can find or has ever heard of Sue
Parks or Suki Nakamura, the alleged witnesses to the Will. The
failure to find a witness in itself is probably not unusual,
especially where a will is exceptionally mature. Here, of course,
the Will was only about three years old when submitted. Further,
testimony of all concerned was that Ms. Houssien was generally very
talkative, but never mentioned this Will signing or the witnesses
to anyone, including those closest to her and who were her
confidants regarding financial matters, for example, Ms. Molena
Daniels.
25. Thus, the only admitted witnesses to the Will signing --
Nelson and Fernandez -- testify that Ms. Houssien was extremely
frail, vulnerable looking, with watery eyes, needing Kleenex,
thirsty and weak looking. Ms. Nelson was sufficiently concerned
about Ms. Houssien that she asked her if she was O.K.
26. The facts related to the signing itself create a motive
for theft of the notary book because two people absolutely unknown
to all living family or friends of the deceased acted as witnesses
to the signing, and their names, identification, and addresses
would have been included in the stolen log book. The log book
would have aided parties to this action in finding the witnesses or
establishing that the addresses and identification provided by them
were false. Presentation of the witnesses, of course, would aid in
establishing Ms. Houssien's mental and physical condition at the
time of the Will signing and any conduct by the Crittells or anyone
else that might have affected Ms. Houssien's condition, judgment,
or Will.
27. The Crittells, in defending the Will, raise the
possibility that the motive for the theft of the notary log book
may have been an irregular notarization by Junalee Fernandez at her
employer's request related to the employer's very ill mother. The
court finds little basis in this as a motive to steal the notary
log book as the absence of the recording of the notarization
process in the log book does not affect the validity of the notary
process. On the other hand, the log book information related to
the witnesses' names and addresses of a recorded transaction could
have resulted in the parties finding the witnesses or determining
that they provided fraudulent identification.
28. The Crittells testified to receiving a package in the mail
which contained what have come to be called the "Kim"letters and
the Will of March 22, 1995.
29. The record reflects that the package was mailed from a
south Anchorage post office.
30. Mr. Crittell testified that, a few days before he received
the package in the mail, he received a phone call from a person
saying he would receive "an important package"in the mail.
31. Mr. Crittell testified that he could not tell whether the
voice was that of a man or a woman and asked who it was but that
the caller did not respond to his question.
32. Both Crittells testified that the receipt of the package
in the mail was the first they knew of Ms. Houssien's death. Later
findings note that the Crittells were continually checking on her
right up to and after her death.
33. Joan Tobuk is a long time Alaskan who got to know Ms.
Houssien while Ms. Houssien was recuperating in the Pioneers' Home
where Ms. Tobuk worked. Ms. Tobuk -- like a lot of people --
became a caring friend of, and often did errands for, Ms. Houssien.
34. Ms. Tobuk would visit with Ms. Houssien and listened to
her when she wanted to talk, which was often according to almost
everyone who had any contact with her.
35. Ms. Houssien reported to Ms. Tobuk that she had signed
blank pieces of paper and she didn't know "why they do this to me."
This statement took place after Ms. Tobuk retired on August 1,
1997, and Ms. Tobuk may have thought it was contemporaneous with
the experience, but Yolanda Daniels, a similar helping friend --
though for hire rather than just a friend -- who had met Ms.
Houssien through her mother, Molena Daniels, reported that Ms.
Houssien told her in 1996 of signing blank papers for a man about
a "year before."
36. Rolando Ginsela, another helper to Ms. Houssien who came
to help about three times a week, testified that, after Super Bowl
1995, Ms. Houssien told him that she had won the "Sweepstakes."
According to Mr. Ginsela, Ms. Houssien told him that someone came
to the house in a suit and tie and told her she had won a million
dollars. She signed paperwork but "they"never came back with her
sweepstakes winnings.
37. Rosemarie Hidalgo testified that Ms. Houssien stated that
Ed Crittell had her sign papers in blank. The court gives
substantial weight to Ms. Hidalgo's testimony and rejects the
testimony submitted by the Crittells trying to impeach her
truthfulness.
38. During the time that Mr. Ginsela worked for Ms. Houssien
(the summer of 1994 to sometime in 1995) he never became aware of
a Kim, a Sue Parks, or a Suki Nakamura. Indeed, no party has
produced the mysterious "Kim"who claims in a note accompanying the
Will and other papers to have been Ms. Houssien's typist (Ex. 257).
Nor did Ms. Houssien -- in spite of sharing with Mr. Ginsela about
many things including the possibility of his becoming her guardian
if he did not move from Anchorage -- ever mention the signing of a
will on March 22, 1995. Interestingly, during the time Mr. Ginsela
was with Ms. Houssien, she was very clear that she did not want Ed
Crittell around her house, that she expressed a concern that Mr.
Crittell would cause her to be sent to a convalescent home, and
that she changed the locks to the house in order to ensure that he
was kept out of her property.
39. It is during this specific time that the proponents of the
March 22, 1995 Will would have the court believe that Ms. Houssien
wanted Mr. Crittell to be her personal representative and wanted
Mr. Crittell's wife to be the primary beneficiary of her will.
40. The Crittells agree that they were actively befriending
Ms. Houssien and were in frequent contact with her from November
1993 when Elma had Thanksgiving with her and the fall of 1994 after
which -- due to a disagreement over the handling of tax papers --
the relationship cooled and the Crittells claim to not have gone
out of their way to see her except on her birthdays and holidays.
The Crittells claim their only contact with Ms. Houssien in 1995
was in April when they were called by Lifeline to check on her due
to an alarm. Prior to 1995, in addition to dining, socializing and
helping with shopping and mail, Mr. Crittell dealt with the sewer
and roto-rooter needs in December 1993, rehung some doors, and gave
Ms. Houssien a false bottom pot for a security bank. Later, in
September 1994, he was too busy to assist with a roof repair she
needed done.
41. But, without question, Ms. Houssien often called on Mr.
Crittell for help. In November 1996, there was a problem with her
door and she called Mr. Crittell to fix it. And, days after that
he fixed the bath ceiling. On Thanksgiving Day 1996, Ms. Houssien
called Mr. Crittell about the sewer and he arranged to have Chuck's
Backhoe do a complete and major repair for $3,700.00, for which Ms.
Houssien paid. In December, Ms. Houssien sent him payment of
$4,000.00 for his help in getting the work done. Mr. Crittell
refused the money, though he relented at her insistence and
accepted $500.00 from her. In March 1997, Ms. Houssien sought help
regarding her cabinets and Mr. Crittell repaired them for her.
And, in April 1997, he mediated a problem she had with the
Municipality of Anchorage regarding the sewer hookup. In
July 1997, he replaced the security camera he had earlier
installed. And, socially, he brought her flowers on her birthday
in September 1997. The next and last visit he reports is Christmas
Eve 1997. As earlier noted -- according to the death certificate
-- Ms. Houssien was found dead around 5:00 p.m. on December 29,
1997.
42. Yet, Yolanda Daniels testified at length about Ms.
Houssien's clear expression of her lack of trust, deep suspicion,
and downright dislike of the Crittells, especially Ed. During the
period Yolanda served Ms. Houssien, she was under orders from Ms.
Houssien to screen calls from the Crittells and not allow them to
talk to Ms. Houssien. Ms. Houssien told Yolanda Daniels she
believed the Crittells stole from her, and gave a particular
example of being out to dinner away from their house, and Mr.
Crittell leaving the table, being gone a long time, and then, on
her return to her house, noticing what she believed to be burglary.
The Crittells came around to "see if she was well,"which annoyed
her. Sometimes they would cruise by and park out in front of her
building. This, too, annoyed her. She was not happy to see the
Crittells on Christmas Eve of 1997 according to Yolanda. Ms.
Houssien objected to their checking on her and bringing her stuff
she did not want. According to Yolanda Daniels, Mr. Crittell
called her and spoke to her on December 30, 1997 asking about
Violet. In fact, both Elma and Ed Crittell called asking of Ms.
Houssien. Apparently, it was common for Ed Crittell to call three
to four times per week during the last year and a half or so of
Yolanda Daniels's service to Ms. Houssien. This belies any claim
by the Crittells of being disinterested and reinforces the
testimony that the Crittells had stolen a will and refused to take
Ms. Houssien to her lawyer from fear that she would change her
beneficiaries.
43. Laura Schell worked with Ms. Houssien at Our Lady of
Compassion, now known as Providence Extended Care, sometime before
August 1991. Later, in 1993, Ms. Schell worked for Providence Home
Health Care and served Ms. Houssien on a routine basis until
leaving in November 1993. Then in January 1995, Ms. Schell
returned to Anchorage and in February 1995 started again with
Providence Home Health Care and again cared for Ms. Houssien. Ms.
Schell, like others who worked with Ms. Houssien, was of the
opinion that Ms. Houssien was meticulous about her personal
cleanliness and appearance. She considered Ms. Houssien to be
decisive, strong willed, and sharp but, that due to her medication,
found her to be confused at times.
Ms. Schell stated that Ms. Houssien expressed frustration with
family and friends in February 1995 and spoke of planning to change
her will. Ms. Schell advised her to "think things through." The
only specifics of her intentions were that she wanted the people
who "cared about her most"to be taken care of in her will, but she
did not elaborate. Ms. Schell also verified Ms. Houssien's
characteristic habit of wanting to immediately settle with people
for what she owed them, and not be beholden to anyone. Ms. Schell
reported Ms. Houssien's belief that Ed Crittell went through her
personal things such as papers and documents, and reiterated her
belief that Ed left dinner to burglarize her house. Mr. Crittell
denies that he ever stole from Ms. Houssien, but admits to
retrieving the fabricated pipe from the crawl space and discovering
it had no money in it.
44. Mebelita Camero was another care giver to Ms. Houssien.
She had less contact with Ms. Houssien after 1989 when
responsibilities in her own family and in her business took much of
her time. It was Ms. Camero who was called to help whenever Ms.
Houssien had an emergency. When Ms. Houssien was taken to the
hospital on December 26, 1997, just three days before being found
dead at home, it was Ms. Camero who Ms. Houssien asked for at the
hospital, and who came and spent the day with her.
45. Ms. Camero testified that, at the hospital, Ms. Houssien
complained of many things taken from her and, in particular, was
concerned that her Will had been taken. Ms. Houssien expressed a
belief that Ms. Crittell may have seen her name on the Will and
stolen it so that it could not be altered. This belief was
supported by Ms. Houssien's statement that the Crittells refused to
take her to her lawyer, she believed, because of their concern that
she would change her Will. Ms. Camero was able to calm Ms.
Houssien by telling her that she would take her to the attorney
when she got better. These statements of the Crittells being in a
will are reinforced by other statements by Ms. Houssien to Ms.
Molena Daniels, described later in these findings.
46. Molena Daniels, Yolanda's mother, called Ms. Houssien on
the Saturday after Christmas, December 27, 1997 and talked at
length with her. Ms. Houssien asked Ms. Daniels to be sure to
check on her. Yolanda Daniels was to work at Ms. Houssien's on the
Monday following, but advised her mom that she had been unable to
contact Ms. Houssien. It was Yolanda's practice to call Ms.
Houssien before going over to work. Her mom told her to check with
the hospitals and the Pioneers' Home, and those places were checked
and she was not there. The Daniels went by the house to see if she
was there, observed that no papers or meals on wheels were left
outside the house, and concluded that someone was collecting these
items as they were delivered and that Ms. Houssien was simply not
seeing people. But, in early 1998, probably January 5, Molena
Daniels received a telephone call from Ed Crittell with news that
he had received a package in the mail with the "Kim"letter and the
idea that, when received, Ms. Houssien would no longer be alive.
47. Ms. Crittell testified that she last saw Ms. Houssien on
December 24, 1997 when she and her husband brought her a tray of
food. Her testimony was that she learned of Ms. Houssien's death
on receipt of the Will and "Kim"letters, and the death was
"verified"the next day.
She testified that she tried to call Ms. Houssien, went to her
house, saw the door had been forced open, and saw no lights in the
house. The door appeared to have been forced, but was secured.
She reports that they went home and she called her sister Minnie
Bayshore. Not knowing Molena Daniels' telephone number, they
waited to call her at work the next business day. Ms. Crittell
explained that Mr. Crittell went to Mr. Goerig first.
Ms. Houssien never mentioned to them that they were in the
Will, according to Ms. Crittell. Ms. Crittell testified she had no
idea that she was a beneficiary or her husband the personal
representative.
48. Richard Williams, former FBI handwriting and typewriter
identification expert, testified that it was his opinion that the
signatures of Violet M.B. Houssien in this case are her signatures,
but he doubted the authenticity of one of the signatures of Sue
Parks, believing it to be a false signature made in, basically, a
copying mode. Given the conflicting evidence that the signature
was witnessed by Junalee Fernandez, the court rejects Mr. Williams'
opinion that the Sue Parks signature is a forgery. It may well be
a false signature by someone only passing as Sue Parks, but the
court is satisfied the two Sue Parks signatures were made by the
same person who presented evidence of identification in that name.
49. Mr. Williams testified that the Violet M.B. Houssien
signatures in the "Kim"papers were all written on a line that was
drawn, not typed, on the page. This fact is interesting and is
further evidence that the signatures were written on the papers in
blank and not after the typing occurred. Obviously, if there were
going to be a line drawn after typed material, then it would make
sense to type the line onto the page. Unequivocally, however, Mr.
Williams was of the opinion that the lines were made against some
kind of straight edge.
50. Mr. Williams also identified the typewriter which was used
to prepare the Will, the other "Kim"documents, including the
codicil and a W-2 for one of Elma Crittell's employees at Ms.
Crittell's store. He opined that, given the number of such
typewriters in use during the 1990s, he would be willing to claim
that the very same typewriter typed all the documents. In fact,
using the standard that he used while with the FBI, the most he
could opine with respect to the documents was that they were all
prepared by the same kind of machine. It is this standard that the
court adopts from Mr. Williams' testimony. But, other facts,
including what the court finds to be Mr. Crittell's false testimony
regarding the source of the typewriter used to type the W-2, cause
the court to be convinced that the exact same typewriter was in
fact used to prepare all the documents. Mr. Crittell claims the W-
2 was produced on a typewriter he took from the University and
later returned. The court rejects this as false testimony.
51. Where the experts differ, the court generally rejects the
contradictory conclusions of the Crittells' expert, Edna Robertson,
except on the issue of whether the same person signed the Sue Parks
signature. To the extent Mr. Williams' testimony does not exclude
that possibility but merely tends to show that someone who was not
familiar with that signature was writing it, the court adopts all
of his opinions except the basis for his conclusion that the very
same typewriter was used (that is, that so few typewriters are used
these days that, therefore, the use of a typewriter of certain
general characteristics on one document justifies the conclusion
the same machine was used on another).
The language of the document - linguists
and those who knew Ms. Houssien
52. The linguistic experts presented by the parties were
helpful, as were the observations of the decedent's siblings. The
language used in the "Kim"papers was not the language Ms. Houssien
used or would use in communicating with her siblings according to
Leatrice Takeuchi, Alice Masuyama, and Elaine Sakaitani, three of
Ms. Houssien's sisters. The reference to their ancestral home was
completely fabricated and not the way in which the family would
have referred to it, according to Ms. Takeuchi and Ms. Masuyama.
Specifically, Ms. Masuyama was clear that the family would refer to
the area they were from in Japan as Komamoto, not Kusha, as used in
the "Kim"papers. (Ex. 254). She would not have referred to
herself as Masako, according to Ms. Masuyama.
53. The language contained within the "Kim"letters generally
lacks the use of articles and the proper use of the verb "to be."
A reading of Ms. Houssien's correspondence from 1974 (Ex. 95 and
97) makes it evident that she effectively used both. Though no one
reported a typewriter in her things, it is evident that she used
one in the mid 1970s and it was not the typeface used here in the
Will and "Kim"letters.
54. The content is inconsistent with the kind of language that
Ms. Houssien used according to Ms. Molena Daniels who described her
use of English as "very fluent." Ms. Daniels -- who was clearly
close to her throughout the last several years -- testified that
exhibits 252-255 and exhibit 258 just do not sound like Ms.
Houssien. Ms. Mebelita Camero, another long time friend, said the
papers did not sound like Ms. Houssien. She also found it totally
out of character for her to use a form will instead of a lawyer.
55. The linguists contradict each other and the court accepts
as more convincing and believable the testimony of Professor
McMenamin.
56. The court finds that the Will and the accompanying "Kim"
letters are a fraudulent presentation to the court and, by these
findings, the Will of March 22, 1995, the accompanying writings and
purported codicil are rejected as the Will of Ms. Houssien. The
court finds that the person who sought pre-signed papers from Ms.
Houssien was not from sweepstakes headquarters, but was the
Crittells, either directly or indirectly through others. The
papers which have appeared in court as the "Kim"letters, exhibits
252-255 and 258 are the papers signed in blank for what purpose Ms.
Houssien did not know at the time she signed them ("why [do] they
do this to me") or which were for fraudulent reasons, that is, not
for sweepstakes that the presenter told her they were for.
57. Additional basis for this conclusion is found in the
testimony of Richard Williams that precisely the same straight edge
and paper appears to have been used to produce the 1997 codicil to
the Will. Of course, one would not expect the same paper or
straight edge to be used two years later. But, if all the pages
were pre-signed some time in January 1995, around the Super Bowl as
testified to by Mr. Ginsela, that would explain that evidence.
Interestingly, even the ink in the pen used at the codicil signing
appears the same as that used for the allegedly earlier papers,
which further suggests the simultaneous signing of the papers. The
court notes a different color ink was used to sign the page which
ended up being the letter to Ms. Houssien's siblings. This anomaly
is unexplained, but the court continues to be convinced of the pre-
signing of all "Kim"papers based on the use of the ink signature
line, the use of the same straight edge, the fact the line is the
same length on each page, and the placement of the text on each
page, that is, the choice of single or double spacing upon the page
in order to make the material appear to fit naturally.
58. Further irrationality within the documents includes Ms.
Houssien's statement that she wanted to keep the matter secret
until her death and that is why she uses "Kim"instead of an
expensive lawyer. Of course, someone other than her had to know of
a will and that included at least Kim under the internal logic of
the documents. The price being paid to Kim is unrelated to the
issue of pre-death secrecy. Further, there is no purpose in
keeping Kim's identification and location secret within these
letters as they would not be made known and become a risk for
disclosure until after Ms. Houssien's death. These irrationalities
further contribute to the court's conclusion that, at the time of
the Will and various supporting documents, Ms. Houssien was not
competent as is discussed below. If these documents were not
fraudulent, then they would be evidence of Ms. Houssien's fragile
and irrational mental state at the time of their preparation.
59. Dianne Davis testified that, while she worked for Home
Health Care between 1990 and 1996, Ms. Houssien was her client for
nursing services. Ms. Davis found Ms. Houssien to be fastidious as
to personal hygiene and dress. According to Ms. Davis, Ms.
Houssien discussed her finances and assets with her a little,
including thoughts about her Will. At one time, Ms. Houssien
remarked of Elma's sister, Minnie Bayshore, that "She'll never have
to work again. She doesn't know it." According to Ms. Davis, Ms.
Houssien later expressed some resentment toward her family but felt
an obligation to leave her estate to them.
Ms. Houssien was not of sound mind when she signed the Will
60. Ms. Molena Daniels testified that, at one point, Ms.
Houssien indicated that Ed and Elma Crittell were in her will. Ms.
Houssien also disclosed to Ms. Daniels that she had left
$100,000.00 to each of her siblings. The Will propounded by the
Crittells leaves $10,000.00 to each sibling.
The court finds Ms. Daniels to be a relatively good observer
and reporter. Thus, this information either demonstrates that Ms.
Daniels is wrong as to what she was told, or Ms. Houssien
incorrectly reported her gift to her siblings. Given the evidence
related to the manner in which she shared information with
confidants, there is no basis to conclude she intentionally lied to
Ms. Daniels, as she could have as easily said nothing. Thus, if it
is not a misreport, then the Will in probate is not the one
referred to in conversation with Ms. Daniels or, if it is, the
Daniels' testimony demonstrates Ms. Houssien's misunderstanding of
her will's practical effect.
61. Ms. Camero's testimony about the effect of Ms. Houssien's
medicines on her perceptions further contribute to the court's
conclusion that, though periodically lucid and "very sharp,"at
other times Ms. Houssien could be and was medicated out of her
sensibilities and unable to know where she was or how she got
there, much less understand the nature of her wealth, or how or to
whom to give it.
62. As early as the Will of October 1989, prepared by Brian
Brundin, Ms. Houssien expressed the desire to leave her siblings
her "love and affection, but no money or other property, since I
believe none of them are in need of any property or assistance from
me." And, in 1997, Ms. Houssien is reported to have told Jay
Burnett, C.P.A., that she did not want to leave her property to her
siblings because they had not been nice to her, and it was her
desire to leave her property to people who had been nice to her.
But, evidence demonstrates that at least one of Ms. Houssien's
sisters was employed well into her late 60s or early 70s. Further,
some testimony suggests that the sisters lost their properties in
Hawaii. This evidence is inconsistent with the idea that the
siblings had no need for assistance from Ms. Houssien, and reflects
inaccurate reporting of Ms. Houssien's understanding, or
misunderstanding, of her siblings' reality by Ms. Houssien.
63. The court also heard the testimony of her treating doctor,
Dr. Armstrong, about the potential debilitating effects of her
medications and the toll of old age: arteriosclerosis and its
potential effect on her exercise of judgment.
64. Psychologist Paul Berg testified, from a records exam,
that it was his opinion that by March of 1995 Ms. Houssien was
paranoid, delusional, addled, confused, and unstable in
relationships. Due to her physical and mental condition, he
considered her extremely susceptible and vulnerable to influence
during March 1995. He felt the medical note related to the
Crittells' criticism of her medical treatment was indicative of
their power over her. That note, and reported concern on her part,
was reported in the March 29, 1994 medical note earlier discussed.
It was his opinion from the records that she lacked capacity to
know and bequeath her bounty.
65. Psychologist Paul Craig testified and expressed the
opinion that Ms. Houssien's hyper-vigilance would, if anything,
cause her to protect herself from outside influence. He further
considered her to be suspicious, but not paranoid and not
psychotic, except possibly while delirious. He did not think she
suffered from dementia. His opinions were also from records
examination.
66. Osamu Matsutani, M.D., a psychiatrist, testified for the
Crittells. He had treated Ms. Houssien in 1989 for thought
disorder. She was very ill with the previously mentioned iliopsoas
abscess and, due to the illness and necessary medications, she
experienced delusional and hallucinational symptomatology. He
considered it temporary, and felt she progressed well and by May of
1990 she was fine and clearly capable of making important
decisions, including making a will.
67. The court adopts Dr. Matsutani's conclusions regarding her
recovery from her 1989 mental problem.
68. The court also finds much of Dr. Craig's testimony helpful
to understanding the limits to Dr. Berg's opinion and conclusions.
69. Stuart Hunsaker, Ms. Houssien's C.P.A. after Willett
Bushnell, testified that Ms. Houssien did not inform him of a new
Will in March 1995, though he was her accountant at that time. He
testified she initially was high on the Crittells and then that
changed when there was a falling out with them due to alleged
thefts by them from her basement, including guns. Mr. Hunsaker
also testified about Ms. Houssien suffering from dry mouth due to
medications. Her alertness varied drastically depending on her
medication throughout this time, and his experience was that about
half the time she was significantly affected by her medications.
70. Given the description of Ms. Houssien as teary-eyed, etc.,
at the signing itself, and given the report two days earlier of the
theft of $135,000, of which she later reported suspecting Mr.
Crittell, the court concludes that these facts and all the medical
records suggest conduct of one who is not functioning at a
sufficient level to make a will. On the one hand, she reports to
her doctor's office a loss of $135,000.00 cash, does not report it
to the police, and then awards the bulk of her substantial wealth
to a person married to the one she suspects is the thief. That
behavior is not consistent with sufficient stability and mental
function to make a will.
71. Further, Ms. Houssien's subsequent report on her death bed
that she believed the Crittells had stolen her Will because they
might have seen their name in it, and their continuing refusal to
take her to see her lawyer, reinforces the notion that Ms. Houssien
may have knowingly signed the Will before the court. However,
given the Crittells' involvement in the Will and Ms. Houssien's
fragility, it is clear the result is not what Ms. Houssien desired.
Ms. Houssien's delusion on the Crittells' possible knowledge of
being in the Will, and belief they stole it, reinforces the notion
that the Crittells may indeed have been involved in the preparation
and signing of this Will and were aware of their beneficiary
status. By being involved with Ms. Houssien both before and after
the signing of March 22, 1995, they curried her favor. But,
according to reliable testimony, they also prevented her from going
to her lawyer out of fear of losing control, control
inappropriately applied in March 1995.
72. Ms. Houssien's complaint, practically on her death bed, of
the Crittells' resistance to her requests that they take her to her
lawyer demonstrates not only the improper exercise of influence on
Ms. Houssien, but how dependent on them and vulnerable to them she
was: how much power they had over her.
. . . .
DATED at Anchorage, Alaska this 23rd day of September, 1999.
/s/ Peter A. Michalski
Peter A. Michalski
Superior Court Judge
* Minor editorial changes have been made to the superior court's
decision to conform to our technical guidelines for publication.